from the indeed dept

I was recently at a "tech" conference that focused on entrepreneurs, and I watched a panel discussion on "legal issues" where the first speaker went on at length about why startups absolutely needed to apply for patents as soon as possible. He argued that so much of a company's value was "tied up" in its "intellectual property" and you absolutely needed to "protect" it or the company could just be copied. This shows a fundamental misunderstanding of true value. The idea, by itself, is somewhat meaningless. The real issue is the execution -- and no matter what you know about the idea, the actual execution is always a lot more difficult. Focusing on "protecting" rather than executing can actually be the death of a startup.

Thankfully, it looks like more and more startups in the "soft technology" realm are recognizing this, and are getting fewer and fewer patents. TechCrunch has a post by patent lawyer Leonid Kravets who did a study of patents and funded companies, and found that each year over the past few years, startups seem to be getting fewer patents.

It may be tough to tell from the chart, but basically, each year shows fewer patent applications from startups. There's a ton of other interesting data at the link above, including some differences between certain investors. Not surprisingly, corporate VC wings seem to like companies with patents (a very big company mentality). Whereas VCs that have been investing in some of the most successful startups today (like Accel, which funded Facebook, and Union Square, which funded Twitter, Kickstarter, FourSquare, Tumblr and many others) have a much lower number of startups they invest in that have patents. Those VCs seem to recognize that it's not the patents that matter, and the general success of both of those firms' portfolios suggests they may be on to something.

from the class-actions-in-action dept

There was some controversy a month or so ago, when it came out that app maker Path was secretly uploading your entire address book to its servers. The company apologized and deleted all the data. Of course, pretty quickly, people realized that lots of apps do this, if you allow the app to search your address book to see who else you know is already using the service. The way they do this is to upload your address book. I would have thought this was, well, obvious, but not everyone seemed to think so (it's also why I never use that feature). Either way, lots of apps quickly changed either how they work or how they explain what happens with that feature.

But, of course, in our litigious society, that's not going to stop the class action lawsuits from being filed. In a 152 page document, a class action lawsuit has been filed against pretty much every big name company in the space:

The lawsuit kicks off by quoting Robert Fulghum's "All I really Need to Know I Learned In Kindergarten," saying, "Don't take things that aren't yours." Of course, as with many such class actions, this one is all about getting the lawyers paid. This isn't to say that I think the actions in uploading the address books were ok, but worth a lawsuit? Seems a bit extreme. It seems that the public pressure about all of this has caused pretty much all of these companies to change how they work, and it's unlikely any real significant "harm" came from this.

from the speak-up dept

With the hearings this morning (more on that later), there were also more statements publicly made against SOPA this morning. Two key ones are, unfortunately, behind Politico's paywall, so I can't link or quote too much. The first, by former Homeland Security Assistant Secretary and former NSA General Counsel, Stewart Baker, was raised a few times during the hearings. Baker focused on the problems of SOPA and PROTECT IP and their impact on online security. He notes that the DNS blocking portions of both bills "run directly counter" to the government's cybersecurity efforts:

Because “block and redirect” is exactly what crooks are doing today to bank customers. If the bills become law, the security system won’t be able to tell the difference between sites that have been blocked by law and those that have been sabotaged by hackers. Indeed, it isn’t hard to imagine crooks redirecting users to sites that say, “You were redirected here because the site you asked for has violated copyright,” while at the same time planting malware on the user’s computer.

There's much more in the article as well, noting that these laws won't actually help Hollywood and will "leave the rest of us hurting and poorer for years." The really tragic part of the hearing is that when all of the panelists were asked about Baker's statement, every single one of them admitted that they didn't understand the technology enough to really comment. The best that the MPAA's Michael O'Leary could blurt out was that he "didn't agree."

The second interesting piece at Politico comes from famed Constitutional scholar Laurence Tribe, who more or less acts as a counterweight to Floyd Abram's letter. He basically highlights all of the problems we've discussed over the past few weeks: vague definitions, broadly targeted, will impact perfectly legitimate sites. And, he notes clearly: "It would violate the First Amendment."

A key provision of the bill would give copyright owners the power to stop online advertisers and credit card processors from doing business with a website, merely by filing a unilateral notice that the site is “dedicated to the theft of U.S. property” — even if no court has actually found any infringement.

The immunity provisions in the bill create an overwhelming incentive for advertisers and payment processors to comply with such a request immediately upon receipt. Courts have always treated such cutoffs of revenue from speech as a suppression of that speech, and the silencing of expression in the absence of judicial review is a classic prior restraint forbidden by the First Amendment.

Just as we have said in the past. It seems that more and more lawyers are making this point. So far, the pro-SOPA side has Floyd Abrams. He's respected, sure, but so is Tribe and so are many of the other lawyers who have questions SOPA's impact on the First Amendment.

Lots of internet companies have come out against the bill as well. Reddit and Tumblr both joined with American Censorship Day, blocking out parts of their site. Tumblr went so far as to blackout their entire dashboard. Along with them Kickstarter and FourSquare both spoke out against the bills as well. These are all platforms that content creators today rely on to create, connect, promote, distribute and monetize their works. In other words, these are the platforms of the future -- the platforms that could be crippled with legal and regulatory compliance under these bills. Burdening them doesn't help content creators. It may help the big record labels and the big studios -- the ones who don't want musicians and filmmakers "going direct" via these platforms... but it doesn't help actual content creators or the public.

We've been seeing a disturbing trend recently. Increasingly, we're receiving purported DMCA requests that ask us to identify website hosts that are actually from attackers abusing the legal code. If we reveal the requested information, attacks are launched directly at those hosts, bypassing CloudFlare's protections and knocking legitimate sites offline. Initially, these requests were relatively easy to spot. When we recognized the new attack method, we changed our policies and trained our customer support team to more carefully screen DMCA requests. Increasingly, however, the requests are becoming more sophisticated and difficult to detect.

Imagine the challenge for someone on CloudFlare's support team. If someone writes to us alleging that they are a photographer who took a picture that appears on a website, or a designer who drew a logo, or an author who wrote some text, how can that claim be verified? I'm an attorney and member of the bar. I teach a course on intellectual property and technology law at the John Marshall Law School. I serve on the Board of the Center for Information Technology and Privacy Law. I've reviewed many of these requests and, even with my training in the subject, I have no idea how to effectively and efficiently tell the difference between valid and invalid complaints.

In an Internet without bad guys, the consequences of revealing a host's information is relatively minimal. Unfortunately, the Internet is full of bad guys. There has been a steady rise in attacks, increasingly affecting legitimate small businesses and ecommerce sites. These attacks have been part of why more than 100,000 websites have sought shelter behind CloudFlare in just the last 12 months. We offer great technical protections to shield sites from attack, but I'm concerned some of our efforts could be undermined by new laws like SOPA.

Yes, read that again, because it's downright scary.

Mozilla, the makers of Firefox, also joined in, with the following on their website:

from the Proud-To-Be-Groped dept

As I've mentioned in the recent past, I think humor is an effective weapon in highlighting wrong doing. There's a long tradition of groups and individuals who have reacted to hardships of various degrees by using humor. Everything from Hitler to the debate on intellectual property has been covered.

So color me amused AND encouraged when I see that Foursquare (those quirky folks that help you "check in" to places) has released a new badge just in time for the Thanksgiving holiday. It's called the Baggage Handler badge. During one of the country's busiest travel seasons, you can now "check in at any airport and include something like "TSA," "grope" or -- my personal favorite -- "Don't touch my junk, bro!" in your shout." You will then receive an unlock text letting you know that "you've had your baggage handled".

It's funny, to be sure, but I wonder if this won't have an even more profound effect. It's long been said that all tyranny needs in order to grow is the indifference of good people. I would imagine that, given the popularity of Foursquare and social media sites, this humorous take on the enhanced screening tactics of the TSA will only spotlight the issues and absurdity even more, perhaps engaging the interest of those otherwise indifferent people.

from the ah,-modern-competition dept

A bunch of folks have sent in the news that Facebook has apparently been granted a very broad patent covering all sorts of location-based "check-in" type services. The patent in question (7,809,805) almost certainly would cover what Foursquare, Gowalla, Google Lattitude and others have done. Of course, it's interesting to note that Facebook itself started offering a product in this space just a couple months ago, when lots of folks noted that it was "late to the game."

The patent filing appears to predate most of the competitors in the space, so it's not like those competitors directly represent prior art. However, Dodgeball, the company that Google acquired (and basically killed) whose founders went on to start FourSquare definitely predates this patent. Even so, there are lots of companies exploring various location-based offerings for many years. The problem wasn't that it needed some big "invention" over how to create a location-based social network. The problem was that the technology hadn't caught up yet: i.e., there weren't that many smartphones with GPS. Once that happened, it was natural to build more location-based services. So it seems particularly silly to patent something that was naturally going to come about once GPS in phones became more common... but that's how the patent system works.

To be fair, to date, Facebook hasn't been known for asserting its patents against other companies (trademarks are another story). But, it's still pretty ridiculous. After all, as it stands right now, there's healthy competition in this particular market, and it's causing all of the players (and some new ones) to keep on innovating and trying to offer better service. If Facebook actually asserted its patent here, it would do the opposite -- and that seems like a clear situation of hindering progress, rather than enabling it.